Halloween is Tort Night

Last week featured a post on civil assault.  Click here to read the article: Police: 2 'Idiots' Dressed as 'Creepy Clowns,' Arrested AfterTerrorizing Teens. Halloween is indeed a night of torts.

Although the two clowns in the video below apparently were arrested for "Standing while looking creepy."

Law Song: Insurance Fraud #2

"There's a lot of ways to make money in this world. But I can't recommend insurance fraud."  Words to live by.

Thought Provoking Law Quote: Anatole France

Nineteenth-century French author Anatole France had this to say of the equal application of law,

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

While the rules in civil litigation may be the same for both parties, are both equally well equipped to carry on the protracted conflict envisioned by the adversarial system? If a high school football team played a game against an NFL team, the rules might be the same for both teams, but what is the likely outcome?

Assault (Civil)

The following is quoted in full from the FindLaw website:

Assault Basics

Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most American lawyers learned in law school.

Assault vs. Battery

Most people think of “assault” as referring to a violent attack. For example, as in “the gang assaulted a rival gang member on the corner of the street” or “the marines began their assault on the enemy position atop the hill.” Violence, or at least some sort of physical contact, is generally implied in the term.

However, while state laws sometimes differ, assault generally doesn't require that physical contact actually occurred. Instead, legal scholars define assault as an intentional attempt or threat to inflict injury upon a person, coupled with an apparent, present ability to cause the harm, which creates a reasonable apprehension of bodily harm or offensive contact in another.

Notice the words “attempt” and “threat” above. In tort law, assault does not require actual touching or violence to the victim. We use another term for the touching or contact: “battery.” You may have heard the term “assault and battery.” This refers to situation where both an assault (attempting to injure or threatening to injure) and a battery (actually touching someone) occur in the same incident. Often the assault occurs immediately after the battery: Right before Fred shot Jon, Jon saw Fred aiming the loaded rifle at him.

Below is a movie clip of a tortious assault without a battery:

Trump Seeks to Exclude His Prior Statements From the Trump U Trial

Donald Trump's lawyers have filed a motion in the pending class action case over Trump University to exclude from evidence any statements made during the presidential campaign, including his own. The case is scheduled to go to trial in November and Trump's lawyers argue that all the negative statements about Trump made by political rivals, and apparently all of his own statements in defense, are irrelevant and prejudicial.  Most legal commentators agree that the judge is unlikely to enter such a sweeping order and will likely wait to rule on individual offers of proof during trial.

Certainly, juries should not have to wade through irrelevant material and undue prejudice must be avoided in every trial.  But isn't a party's motion to exclude his own prior statements a bit of a red flag?

Ironically, Trump previously tried to keep evidence from the Trump U case from being released into the presidential campaign.  It was the judge's order allowing the release that caused Trump to attack the judge's impartiality because of his Mexican Heritage - a ploy that harmed his political fates.

Is KFC up to No Good, Again?

Back in 2004, KFC got into a jam with the FTC over claims that its chicken meals were healthier than Burger King Whoppers. That factual claim turned out to be a whopper of its own.

Now TMZ is reporting that a woman has sued KFC for $20 M because the $20 "Family Fill Up" bucket of chicken she bought looked nothing like the visual presentation of the product in the advertisements. In the advertisements, some of which are reproduced below, the meal includes an overflowing bucket of large chicken pieces. The unhappy customer quipped of her purchase:

“They say it feeds the whole family … They’re showing a bucket that’s overflowing with chicken.” . . . “You get half a bucket! That’s false advertising, and it doesn’t feed the whole family. They’re small pieces!”

At the time of publication of this post, no details about the form or make-up of the lawsuit were available.

Law Music Video: Jury Duty

Most songs about jury duty are about miscreants trying to get out of it.  This one is different. It may be the most thoughtful one on the topic that I have heard.

Jury Duty

I took a bus all the way downtown,
where 100 of us sat around,
I waited till they called my name,
& they asked if I could fix the blame?
but I know I’ll be judged the way that I judge,
and that’s not usually pretty,
‘cause the measure that I choose is the 1 that they’ll use
when they face me for jury duty, jury duty..

so raise your hand if you recognize
the defendants in their Sunday ties,
as they try to shake the sins of youth,
while the lawyers tug-o’-war the truth,
but we know we’ll be judged the way that we judge,
and that’s not gonna be pretty,
‘cause the measure that we choose is the 1 that they’ll use
when they face us for jury duty..
once I found mercy sweet,
I threw myself at her feet,
& when I asked “am I cursed?”
she laughed: “you’re not the first, you’re not the first.. “

take the worst thing you’ve ever done,
make that moment your defining one,
who of us would get off Scot free?
I’ll tell you now, it sure as hell ain’t me,
‘cause I know I’ll be judged the way that I judge,
that can’t hardly be pretty,
‘cause the measure that I choose is the 1 that they’ll use
when they face me for jury duty,
we all know we’ll be judged the way that we judge,
(I need you to remind me),
that the measure that we choose is the 1 that they’ll use
when they face us for jury duty..

I took a bus all the way downtown
to the courthouse, where we sat around,
I waited till they called my name,
& they asked if I could fix the blame…

Crash Course: Judicial Review

Here is the latest feature in the PBS series on Government. These videos cover a lot of ground in a short clip.  Maybe too long to show in class, but not too long for an out-of-class assignment.

Is Civil Litigation a Level Playing Field?

Click on the link here to watch a Yahoo Finance reporter suggest that the employee lawsuit filed against Wells Fargo for enforcing unrealistic sales goals necessitating unethical conduct is likely bogus because "It was filed by a one-man law firm."  If the rules of civil litigation made a level playing field, then this would not be relevant.  If courts were really the great levellor where any person can take on a powerful party and have a real chance at justice, this would not be relevant.

Since it is apparently relevant, then maybe those other things are not true.

In the movie clip below from "The Rainmaker," sole practitioner Rudy Baylor tries to take a corporate deposition of the defendant insurance company represented by a "big" law firm.

One Case, Three Law Lessons

Sexual assaults on college campuses are a matter of great concern. Changes in the way that colleges and universities handle campus disciplinary proceedings based on allegations of sexual assault have changed radically in the last few years.  Those teaching law in universities are likely well aware of the panoply of legal issues raised by lowering the evidentiary standards for proof of guilt, barring cross examination or witness confrontation and other issues. (Click here to read an article on the topic by ALSB member, Audrey Wolfson LaTourette.)

Brown student, John Doe, had been found "responsible" for sexual misconduct by a University tribunal and was suspended.  The case hinged on a factual dispute regarding consent. At the time of the incident, the University had no clearly defined definition of consent, although one was later adopted.  Doe was suspended based on the retroactive application of the definition.  Also, he was barred from presenting evidence in his defense.

Doe challenged the faulty procedure in federal court. Because Brown is a private university, Doe did not have a due process claim.  He filed suit for breach of contract. Recently, Chief Judge William E. Smith of the U.S. District Court for the District of Rhode Island, ruled in Doe's favor and ordered his reinstatement at Brown.

Lesson 1: Disputes must be resolved by a fair procedure of which both parties have had prior notice.

Sexual assaults on college campuses trigger deep emotions.  Victims deserve sympathy, support, validation and ultimately, justice. But the accused must also not be denied the legitimate opportunity to defend against the claims. The criminal justice system, with its Constitutional protections for the accused has been developed and fine tuned over the last two centuries. Finding and developing a completely different private adjudicatory system in colleges and universities that gives adequate consideration to the legitimate interests of victims and accused alike is a minefield of litigation.

Lesson 2: Federal judges cannot be lobbied like legislators.  They are appointed for life specifically to be less influenced by public opinion and passions.  The same principles may or may not apply to elected state court judges.

Judge Smith had been the target of a substantial e-mail lobbying campaign intended to affect his ruling.  In blasting the effort, Judge Smith explained: 

[T]he court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After the preliminary injunction, this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court.

Before the court was only the issue of the procedural propriety of the tribunal - not the issue of guilt or innocence.

Lesson 3: The law is not just a set of predetermined rules that are mechanically applied to achieve justice. There is a lot of trial and error and experimentation and evolution. And in that process, real people's lives are affected.

Cases are not just academic thought exercises. They are the legal outcomes of real, often tragic, events affecting real people. Courts do not have the advantage of legislators who can pass a law and send it out into society to  see what happens.  Judicial rulings apply immediately to affect the lives of the litigants in often profound ways.

True Facts, Bad Deal

Here is an interesting, and true, fact pattern to discuss the issues of title under the UCC.

Under the UCC, one who has acquired possession based on a voluntary transfer of the goods by the title holder, acquires voidable title if the goods where obtained by fraud or deceit. While the goods are in the hands of the defrauder, the title holder may void the title and retrieve the goods. But under Article 2-403, a person with voidable title may transfer good title to a good faith purchaser for value. So if the defrauder has already sold the goods to a good faith purchaser for value, the title holder may not recover the goods from the buyer.

To be sure, the defrauder is liable to the title holder for the value of the goods. But thieves, even when apprehended, rarely have the means to pay damages.

According to the Daily Beast:

Two young men, identified as Kaleb Louis, 22, and Maurice Lewis, 20, flew from Houston, Texas, to Nashville on March 14. While still in the airport, the pair allegedly used a fake driver’s license and a stolen credit card to rent [a late model Chevy Suburban.]

After driving off the lot with the rented Suburban, Louis and Lewis allegedly set about making the car look like their own. They outfitted the rental with a license plate ripped from a Toyota Camry in a nearby apartment complex, and forged documents to indicate that they owned the car. Then they listed the Suburban on the Nashville Craigslist page.

A Lafayette, Tennessee, man thought he’d struck Craigslist gold. The Chevrolet Suburban, normally valued at around $60,000, was selling for half its normal price. All he had to do was bring $30,000 in cash to a McDonald’s parking lot in Nashville, and the new vehicle would be his.

But Kyle Whitlow, the would-be Suburban owner, grew suspicious of the deal when he forked over the $30,000. The 28-year-old handed the cash to two young men, who gave him the Suburban and sped off in their own car without even counting the money. Whitlow’s suspicions grew when he attempted to register the car later that day and found another name on the registry: EAN Holdings LLC, the parent company of Enterprise Rent-a-Car.

After selling the vehicle to Whitlow at McDonald’s, the pair boarded the next flight to Houston. According to police, they remain at large.

May Enterprise Rent-A-Car, the title holder obtain the car back from Whitlow or did Louis and Lewis pass good title to Whitlow in the parking lot sale?  Was Whitlow a good faith purchaser for value?  Why or why not?

Spoiler Alert from the Daily Beast:

An Enterprise representative declined to comment on the Suburban theft, or the frequency of other thefts from their lots. But with the exception of the license plate removed from the back of the Suburban, the company saw the car returned in one piece, police said.

Law Song: So Sue Us

Not only is this an upbeat song to get students' brains going before class, it is actually a law lesson. Students don't often realize that having a cause of action doesn't mean much if the defendant is judgment proof.

Thought Provoking Law Quote: Frank Galvin in, "The Verdict"

In this blockbuster movie from the 1980's based on Boston lawyer Barry Reed's novel, an alcoholic lawyer mired in hard times thrust upon him by a legal system that rewards cronyism tries to redeem himself by winning a medical malpractice case.  See the post here.

In one scene, the lawyer, Frank Galvin (played by Paul Newman and earning an Oscar nomination) gives us a glimpse of what lies inside the gritty exterior and beyond the grimy practices.

The weak, the weak have got to have somebody to fight for them.... That's why the court exists. The court doesn't exist to give them justice, eh? But to give them a chance at justice.

See the scene below, beginning around :30:

ADA Chronicles: Common Sense Saves Many Dollars

Click on the headline to read the Washington Post story titled, "A diabetic gets fired over a $1.69 (plus tax) drink and Dollar General must now pay her $277,656."

And some people question whether managers should have to take courses in law?  It would have been cost effective for Dollar General to pay the tuition for that district manager to take a Legal Environment course. Smart business judgment avoids costly court judgments.

EEOC press release.

Diabetes Discrimination:

What is Congressional Legislation Made of?

In May of 2016, Texas Congressman Louie Gohmert addressed his colleagues in the House of Representatives on a matter of pressing concern. He posited that in the instance of earth being destroyed by an asteroid, the spaceship containing the 40 people chosen to rocket to Mars to set up a colony to preserve humanity should not include same-sex couples. This is apparently what he and his staff have been hard at work researching on behalf of the public interest.

For other blog posts questioning the rationale that underlies Congressional law-making, click here. 

See the video except of Representative Gohmert's speech below:

"Our Rights Come From God . . . As Determined by Law-Makers."

According to Senator Ted Cruz's message for Constitutions Day 2016, one of the two transformative premises set out by the US Constitution is that, "Our rights come from God."



I didn't recall that part of the Constitution, but Ted is a Harvard Law School grad, so I thought maybe I missed something.  So I googled up a transcript of the Constitution at the National Archives site. Then I executed "find" functions for "God," "Creator," and "supreme being." I didn't get any hits. I didn't think I would.

At least one authoritative legal scholar says that the determination of what rights God has given us is a decision that is made by people.  So if people are deciding what rights come from God, then don't our rights ultimately come from people?




And when some people say that their God-given rights to refrain from assisting in the marriage of two women allow them to ignore the God-given human dignity of the wedding couple to be free from unwarranted discrimination, won't people (judges) have to make a decision based on what makes for a civil and orderly society? These seem much more like earthly matters than heavenly ones.

This all seems a bit more complex and nuanced than simply stating that "our rights come from God."

Law Music Video: Swear to Tell The Truth

A rockin' and rollickin' blues number to get the feet tapping and heads wagging (signs of increased brain activity) before class starts.

Crash Course: Judicial Decisions

Another video from the PBS Crash Course Series on Government. I am assigning some of these as in, "They will be on the test."

Loving v. Virginia, The Movie

Click here (or see below) to see the trailer for the upcoming movie release (November) of "Loving," the story of Richard Loving and Mildred Jeter and their case that made Constitutional history.

For more resources on Loving v. Virginia, see this earlier post and the music videos below.

Trailer:



Music videos:

The Hot Coffee Case Comic Book

The Liebeck v. McDonald's lawsuit is now drawn up as a comic book. We can lecture about it. We can show the movie. We can show any of a number of videos. Now, see the comic book.  Next,
maybe the song?

Anything to get the point across.

Video Evidence

Cellphones are everywhere. But to what extent should cellphone videos be admissible as evidence in court? How do we guard against editing, enhancement and modification?  What do we see in these videos?